BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH92149
Plaintiff, )
vs. )
) Citation No. J851901792
NW HOUSING CONCEPTS )
Defendant ) OPINION AND ORDER
This matter came on for hearing April 1 and was continued to
June 24, 1993, when the hearing was held and the record was
closed by the undersigned referee. The corporate employer was
represented by Richard Meissner and the Department of Justice
was represented by Attorney Kevin Shuba. Exhibits 1 through 8
plus 10 were admitted. Naegili reported the proceedings in
April; Harris recorded themin June.
STIPULATIONS
Item No. 1-3 is withdrawn by the Department.
Items Nos. 1-1, 1-2, 1-4, 1-7, 2-8 and 2-9 are resolved by
employer's agreeing to pay $695 in settlement of all these
violations. Employer understands that these violations will be
of record.
ISSUES
The only issues to be litigated are items 1-5 and 1-6 of the
citation.
FINDINGS
At the time and place in question, employer was a subcontractor
on a residential housing project. Amongs the projects it was
involved in was excavation and framing for certain foundation
type work The method employer chose for protection of the
excavation site against cave-ins was non-disturbance of native
vegetation, placement of filter fabric and placement of concrete
along some portions of the top of the excavation where it met
the roadway. At the time and place in question no sloping and
benching or shoring system was in evidence or in operation. No
custom system had been designed or approved for use by a
registered professional engineer. The system in use at the time
of the OSHA inspection was not designed in accordance with the
existing rules. Mr. Meissner, a corporate officer and part
owner of the business, was working on site and designed such
system as was in use; Mr. Meissner is not a registered
professional engineer.
At the time and place in question, no qualified person had
performed appropriate evaluations to determine the adequacy and
sufficiency of the protection against cave-ins. No shoring was
in place; no sloping was in place. No soil evaluation was
provided to the OSHA inspector at the time of the inspection
which showed that at the time of the inspection, the soil was
adequate to withstand the threat of cave-in. The soil was not
sloped to the default ration of one and one-half to one.
Employees had been working in the excavation in the recent past
prior to the inspector's presence, as evidenced by the work that
had been done, footprints, and tools in the excavation, and as
confirmed by Mr. Meissner.
The excavation was approximately seven feet deep and
approximately 10 feet wide at its widest.
At the time and place in question, daily inspections were not
being performed by any individual familiar with the relevant
standards to determine whether the protective system in place at
the excavation met the requirements of the applicable rules. No
warning signs were in place to advise persons to stay out of the
excavation.
The risk of a cave-in due to lack of inspections was in the low
category and the likelihood of harm should a cave-in have
occurred was in the serious category.
OPINION AND CONCLUSIONS
Citation Item 1-5
OAR 437-03-001 and 29 CFR 1926.652(a)(1) requires that employees
in excavations be protected from cave-ins by a protective system
designed in accordance with the specification set forth in the
rule. That rule requires either an appropriate sloping and
benching system or an appropriate shoring system. The shoring
system could be designed based either on tabulated data or a
protective system may be designed and approved by a registered
professional engineer. In that case, a copy of the design must
be maintained at the job site during construction of the system.
The design in use at the site in question had no shoring system
and had a purported sloping and benching system which did not
conform to the requirements of the rule. There was no approved
design by a registered professional engineer either. The slope
provided did not conform with either option of Subsection (b) of
Section 1926.652(b) in any of four possible ways, including that
it did not meet the default slope specification of one an done
half to one provided.
Employer's position is that the undisturbed vegetation on the
slope and the filter fabric (which was not pointed out to the
compliance officer), covered noncontinuously with concrete, was
an appropriate protective system, and that the excavation was
safe. It was employer's position that even if all the soil on
the slope were to slough into the excavation no one would be
hurt. Employer argued that if he had removed the vegetation and
not put in the concrete, which is what he believes OSHA
requires, that the excavation would definitely wash out.
Contrary to employer's understanding, the issue before me is not
whether the system he provided was ultimately safe, but whether
he provided was constructed in conformance with the applicable
rules. Clearly, he did not.
Employer urges the referee to read all of the exhibits
carefully, particularly Exhibits 8 and 10, which he proposes are
sufficient reports to support the method he employed. I have
read those documents carefully. Exhibit 8 is a 1978 report on
the general quality of the soil with respect to its suitability
for construction of multi-unit structures. It is neither
current nor does it specifically address the appropriateness of
excavation cave-in protection at the time and place in question;
the rules require far more specificity than is provided in that
report. Additionally, employer points to Item No. 7 on Exhibit
8-2, which provides that temporary slopes may be cut near
vertical to heights of 5 or 6 feet, and he estimates slopes
which would be required at heights above that; this comment does
not substitute for the specific requirements of the OSHA rules.
Employer also points to Exhibit 10, which are various in place
soil density tests performed in the time frame not too far
before this inspection. I am not an expert in these matters and
cannot interpret these test results. Even if I could, that does
not cure the problem that these soil density tests in and of
themselves do not meet the requirements of the rule.
I conclude from all the evidence that, despite employer's
proffered good faith, employer did not comply with the
applicable safety rules and the citation should be affirmed.
I accept the compliance officer's assessment of the danger
rating and likely type of injury rating, and further conclude
that all appropriate discounts were given and the fine was
correctly calculated.
Citation Item 1-6
OAR 437-03-001 and 29 CFR 1926.651(k)(1) requires that daily
inspections of excavations, adjacent areas and protective
systems be made by a person competent to determine whether there
is a situation that could result in a cave-in, or an indication
of failure of the protective system, hazardous atmosphere or
other hazardous conditions.
No individual performed such daily inspections, nor was any
individual available who had suitable familiarity with the
safety requirements to assess these things. I conclude the
applicable rules were not complied with.
I accept the assessment of the compliance officer with respect
to the risk of injury and the harm that could have been caused
had the system failed. Her reduction of penalties was
appropriate, and the penalty calculation was correct.
ORDER
The stipulations of the parties are accepted as set forth on
page 1 of this order.
With respect to Items 1-5 and 1-6, the citation and penalties
are affirmed.
NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition to the State Court Administrator, Record
Section, 1163 State Street, Salem, Oregon 97310, within 60 days
following the date this Order is entered and served as shown
hereon. The procedure for such judicial review is prescribed by
ORS 183.480 and ORS 183.482.
Entered at Portland, Oregon on July 1, 1993
WORKERS' COMPENSATION BOARD
By Gilah Tenenbaum
Referee